USA > Massachusetts > Norfolk County > Braintree > Town annual report of Braintree, Massachusetts for the year 1891 > Part 5
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SECT. 5. The said corporation may distribute the water through said town of Braintree or any part thereof; may regulate the use of said water, and fix and collect rates to be paid for the use of same ; and may make such contracts with said town, or with any fire district that is or may hereafter be established therein, or with any individual or corporation, to supply water for the extinguish- ing of fire or for other purposes, as may be agreed upon by said town or such fire district, individual or corporation, and said corporation.
SECT. 6. The said corporation may, for the purpose set forth in this Act, hold real estate not exceeding in amount twenty thou-
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sand dollars ; and the whole capital stock of said corporation shall not exceed one hundred thousand dollars, to be divided into shares of one hundred dollars each.
SECT. 7. Whoever wilfully or wantonly corrupts, pollutes, or diverts any of the waters taken or held under this Act, or injures any structure, work, or other property owned, held or used by said corporation under the authority and for the purposes of this Act, shall forfeit and pay to said corporation three times the amount of damages assessed therefor, to be recovered in an action of tort; and upon conviction of either of the above wilful or wanton acts shall be punished by a fine not exceeding three hun- dred dollars or by imprisonment not exceeding one year.
SECT. 8. The said corporation may purchase from the owner of any aqueduct or water pipes now used in furnishing water to the inhabitants of said town all the estate, property, rights and priv- ileges of such owner, and by such purchase shall become subject to all the liabilities and duties to such owner appertaining.
SECT. 9. The said corporation may issue bonds bearing interest at a rate not exceeding six per centum per annum, and secure the . same by a mortgage on its franchise and other property, to an .amount not exceeding its capital stock, actually paid in and ap- plied to the purpose of its corporation.
SECT. 10. The said town of Braintree shall have the right, at any time, during the continuance of the charter hereby granted, to purchase the franchise, corporate property, and all the rights and privileges of said corporation, at a price which may be mutually agreed upon between said corporation and the said town ; and the said corporation is authorized to make sale of the same to said town. In case said corporation and said town are unable to agree, then the compensation to be paid shall be determined by three commis- sioners, to be appointed by the Supreme Judicial Court, upon appli- cation of either party, and notice to the other, whose award, when accepted by said Court, shall be binding upon all parties. This au- thority to purchase said franchise and property is granted on condi- . tion that the same is assented to by said town by a two-thirds vote of the voters present and voting thereon at a meeting called for that purpose.
SECT. 11. The said town may, for the purpose of paying the
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cost of said franchise and corporate property, and the necessary expenses and liabilities incurred under the provisions of this Act. issue from time to time bonds, notes and scrip to an amount not exceeding in the aggregate one hundred thousand dollars; such bonds, notes and scrip shall bear on their face the words, " Brain- tree Water Loan " ; shall be payable at the expiration of periods not exceeding thirty years from the date of issue; shall bear interest payable semi-annually, at a rate not exceeding six per centum per annum, and shall be signed by the treasurer of the town, and countersigned by the Water Commissioners hereinafter provided for. The said town may sell such securities at public or private sale, or pledge the same for money borrowed for the purposes of this Act, upon such terms and conditions as it may deem proper. The said town, unless it avails itself of the provisions of Section 12, shall provide at the time of contracting said loan, for the establish- ment of a sinking fund, and shall annually contribute to such fund a sum sufficient, with the accumulations thereof, to pay the princi- pal of said loan at maturity. The said sinking fund shall remain inviolate and pledged to the payment of said loan, and shall be used for no other purpose.
SECT. 12. The said town, instead of establishing a sinking fund, may, at the time of authorizing said loan, provide for the payment thereof in such annual proportionate payments. as will extinguish the same within the time prescribed in this Act; and when such vote has been passed. the amount required thereby shall, without further vote, be assessed by the assessors of said town in each year thereafter, until the debt incurred by said loan shall be extinguished, in the same manner as other taxes are assessed under the provisions of Section 34 of Chapter 11 of the Public Statutes.
SECT. 13. The return required by Section 91 of Chapter 11 of the Public Statutes shall state the amount of any sink- ing fund established under this Act, and if none is established, whether action has been taken in accordance with the provisions of the preceding section, and the amounts raised and applied there under for the current year.
SECT. 14. The said town shall raise annually, by taxation, a sum which, with the income derived from the water rates, will be
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sufficient to pay the current annual expenses of operating its water works, and the interest as it accrues on the bonds, notes and scrip issued as aforesaid by said town, and to make such contri- butions to the sinking fund and payments on the principal as may be required under the provisions of this Act.
SECT. 15. The said town shall, after its purchase of said franchise and corporate property, as provided in this Act, at a legal meeting called for the purpose, elect by ballot three persons to hold office, one until the expiration of three years, one until the expiration of two years, and one until the expiration of one year from the next succeeding annual town meeting, to constitute a Board of Water Commissioners ; and at each annual town meeting thereafter, one such commissioner shall be elected by ballot for the term of three years. All the authority granted to the said town by this Act, and not otherwise specifically provided for, shall be vested in said Board of Water Commissioners, who shall be subject, however, to such instructions, rules and regulations as said town may impose by its vote; the said commissioners shall be trustees of the sinking fund herein provided for, and a majority of said commissioners shall constitute a quorum for the transaction of business relative both to the. water works and to the sinking fund. Any vacancy occurring in said board from any cause may be filled for the remainder of the unexpired term by said town, at any legal town meeting called for the purpose.
SECT. 16. The authority herein granted to said corporation, to take the waters of any part thereof of said Great Pond, for the purpose of furnishing the said town of Braintree and its inhabi- tants with water, is granted on the condition that the same is as- sented to by a majority vote of the voters present and voting thereon at a legal meeting of said town called for the purpose, within two years from the passage of this Act, but the number of meetings so called in any year shall not exceed three.
SECT. 17. Nothing herein contained shall be construed to af- fect the rights of the towns of Braintree, Randolph and Holbrook to equal portions or shares of the waters of said Great Pond, as provided in Chapter 217 of the Acts of the year 1885, entitled, " An Act to supply the Towns of Braintree, Randolph and Hol- brook with water." But upon the passage of this Act, the said
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towns of Randolph and Holbrook, if they have accepted said Act of the year 1885, as therein provided, may proceed to carry out the provisions of said Act, as though said Act had not been ac- cepted by the said town of Braintree : provided, that if the said town of Braintree shall refuse to give its assent as provided in Section 16 of this Act, and shall at any time after the passage of this Act, elect commissioners under the said Act of the year 1885, and vote to proceed thereunder, then and in such case said town of Braintree shall have the right to take the waters of said Great Pond by a separate conduit or from the conduit constructed jointly by said towns of Randolph and Holbrook at its election. If it elects to take said waters through a separate conduit, then and in that case it shall pay or secure to the said towns of. Randolph and Holbrook a just and equitable proportion of any damages or liabil- ities incurred by them in the taking of the waters of said Great Pond. If it elects to use a common conduit constructed by said towns jointly, it shall pay or secure a just and equitable part or proportion of the expense of constructing such conduit, including any land damages resulting therefrom, and any damages incurred in the taking of said waters. If it elects to use any other works jointly erected or constructed by the said towns of Randolph and Holbrook, it shall also pay a just and equitable part or proportion of the expense or liability jointly incurred by said towns in the construction of such works so used by it. In case the said towns are unable to agree in any matter arising under the provisions of this section, then the matter in controversy shall be determined in the manner provided in Section 13 of said Act of the year 1885, by commissioners appointed as therein provided, and thenceforth the town of Braintree shall be entitled to all the rights and privi- leges and be subject to all the duties and obligations contained in said last named Act, not inconsistent with this Act.
SECT. 18. In case said town of Braintree gives its assent as provided in Section 16, the said towns of Randolph and Holbrook and said corporation may unite in a joint taking of the waters of said Great Pond, if the Boards of Water Commissioners of said towns of Randolph and Holbrook and said corporation shall deem it expedient to do so. The supervision, management and control of the waters of said Great Pond, taken and held, jointly or sepa-
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rately, by said towns of Randolph and Holbrook and said corpora- tion, and the letting down of the same, shall be vested in a joint Water Board, to be composed of the chairman of each Board of Water Commissioners, for the time being, of said towns and the president of said corporation ; and any matter of controversy aris- ing therefrom, or connected therewith, shall be determined in the manner provided in Section 19 of this Act by commissioners appointed as therein provided.
SECT. 19. In case the said towns of Randolph and Holbrook and said corporation take the waters of said Great Pond, either jointly or separately, the damages resulting from such taking or for any injury to the water rights connected with said Great Pond, and which damages said towns and said corporation shall have been adjudged liable to pay, shall be adjusted, borne and dis- charged equitably between said towns and said corporation, and each of said towns and said corporation shall be entitled to an equal share of said waters. In case said towns and said corpora- tion are unable to agree in any matter relating to such damages, then the matter in controversy shall be determined by three com- missioners to be appointed by the Supreme Judicial Court, upon application of either party and notice to the other, whose award, when accepted by said Court, shall be binding upon all parties.
SECT. 20. In case said town of Braintree shall purchase the franchise, corporate property and the rights and privileges of said corporation, as herein provided, then and thereafter the supervision, management and control of the waters of said Great Pond, taken or held by said towns of Braintree, Randolph and Holbrook, and the letting down of the same, shall be vested in a joint Water Board to be composed of the chairman of each Board of Water Commis- sioners, for the time being, of the said towns; and any matter of controversy arising therefrom or connected therewith, shall be determined in the manner provided in Section 19, by commis- sioners appointed as therein provided.
SECT. 21. - Chapter 110 of the Acts of the year 1884 is hereby repealed.
SECT. 22. - The County Commissioners for the county within which any land, water or water rights taken under this Act is situ- ated shall, upon application of the owner thereof, require said cor-
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poration to give satisfactory security for the payment of all dam- ages and costs which may be awarded such owner for the land or other property so taken ; but previous to requiring such security, the County Commissioners shall, if application therefor is made by either party, make an estimate of the damages which may result from such taking, and the County Commissioners shall in like man- ner require further security, if at any time thè security before re- quired appears to them to have become insufficient; and all the right or authority of said corporation to enter upon or use such land or other property, except for making surveys, shall be sus- pended until it gives the security so required.
SECT. 23. - This Act shall take effect upon its passage, but · shall become void unless work under this Act is commenced within three years from the date of its passage.
Approved June 3, 1886. '
The company created by above legislation commenced operation in the summer of 1886 towards constructing a plant.
A filter gallery was constructed near the borders of Little Pond. This gallery was to be the source of supply.
During the fall of 1886 and the early part of 1887 the sentiment in town seemed to favor town ownership of the plant.
On January 12, 1887, the town voted to purchase the corporate property, rights and franchise of " The Braintree Water Supply Company," and appointed a committee to confer with the officers of the company and report, to the town at a subsequent meeting.
On February 23, 1887, this committee submitted its report to the town.
It appeared that the company had contracted to put in a com- plete set of works, operations to be commenced in the coming spring. This was contrary to general expectation. The citizens were of opinion that the property of the company consisted only in what had been done during the past season, which was substan- tially the building of the gallery at the pond. The town not wish- ing to assume the contracts of the " Braintree Water Supply Com- pany," passed a vote on March 10, 1887, rescinding the action taken January 12, 1887.
At this meeting it also voted to " proceed forthwith " under the provisions of the Act of 1885, and establish a system of works from Great Pond.
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Under this Act and at this meeting a vote was passed authorizing the issuance and sale of one hundred thousand dollars in bonds.
The following were elected a Board of Water Commissioners : Hon. Asa French, Col. A. C. Drinkwater, and C. N. Wallace, Esq.
Subsequent to the meeting of Feb. 23, and previous to that of March 10, the Braintree Water Supply Company made application to the Supreme Judicial Court, setting forth that a disgreement existed between it and the town as to price of the plant and pray- ing for the appointment of commissioners as provided in the Act of Incorporation (1886).
The Water Commissioners elected by the town took no definite action to establish a plant until Sept. 8, 1887, at which time they executed a contract with John Cavanagh & Son to put in a com- plete system of works from Great Pond. The Commissioners entered into an agreement with the towns of Randolph and Hol- brook in a taking of the water of Great Pond by a separate pump- ing station, and from a different part of the pond.
The Water Company proceeded during this year, and by the fall the town was piped and the company had secured several custom- ers for water. The work upon the Great Pond system was com- menced and progressed until operations had to be suspended on account of the frost.
Work was resumed in the early spring, and continued until, on April 7, the following decision was given on petition of Water Company to Supreme Court for the appointment of Commis- sioners.
DECISION OF SUPREME COURT.
KNOWLTON, J. By Stat. 1886, Chap. 269, the Braintree Water Supply Company was incorporated for the purpose of furnishing the inhabitants of the town of Braintree with water. The Act of . Incorporation conferred upon the company extensive powers, and also secured to the town the right to obtain the property and franchise of the corporation, and to control the business of sup- plying its inhabitants with water whenever it should choose so to do. Section 10 of this Act is as follows: "The said town of Braintree shall have the right at any time during the continuance
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of the charter hereby granted to purchase the franchise, corporate property, and all the rights and privileges of said corporation at a price which may be mutually agreed upon between said corpor- ation and the said town. In case said corporation and said town are unable to agree, then the compensation to be paid shall be determined by the commissioners to be appointed by the Supreme Judicial Court, upon application to either party, and notice to the other, whose award, when accepted by said Court, shall be binding upon all parties. This authority to purchase said franchise and property is granted on condition that the same is assented to by said town by a two-thirds vote of the voters present, and voting thereon at a meeting called for that purpose."
The fundamental question in the case is, What were the rights and obligations of the respective parties under this section? An important part of the chapter relates to the powers and duties of the town in managing the business of furnishing water in case it should purchase the property and franchise of the petitioner; and the intention of the Legislature to give the town the right to take this business in charge is manifest. The authority conferred was not the power to take property by an exercise of the right of eminent domain, but it was somewhat analogous to it. It was an authority to the town to determine absolutely by its own act in the form of a two-thirds vote, at any time during the continuance of the char- ter, that the petitioner's property and franchise should become its own. The statute calls it "a right to purchase" and seems to con- template a transfer of title in the form of a sale, and the execution of some proper instrument as evidence of the transfer. For if the town should vote to purchase, after the petitioner's works had. been constructed, there might be a great variety of property, real and personal, to be transferred, and no way is pointed out in which the town could obtain and preserve in convenient form the evidence of its title except through an instrument of sale.
But, as a preliminary to fixing the rights of both parties, - of one to have the franchise and property, and the other to have the pay for it, - no writing and no negotiation was required ; nothing but the vote of the town declaring its determination. The Legis- lature conferred upon the company the corporate franchise, with a
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condition annexed in favor of the town. By accepting its charter, the corporation impliedly agreed to sell whenever the town by vote should decide to buy. The legal relation of the parties was as if the corporation had made in writing a continuing offer to sell, at a price to be subsequently agreed upon by the parties, and in default of agreement to be fixed by commissioners.
The vote of the town to buy was an acceptance of the offer which completed the contract. The rights of the parties were then the same as if both had signed an executory contract binding one to sell and the other to buy at a price to be agreed between them, or determined under the statute. Neither party could then defeat the right of the other to have the contract executed. By the terms of the statute it was to be specifically performed. The town might, if it had chosen, have declined to avail itself of the offer held out to it, under this statute, to purchase at a price to be afterwards fixed, and have voted under the authority of Pub. Stat. Chap. 27, Sect. 27, and perhaps of this statute also, to negotiate with the corporation in reference to making a purchase at a price to which both should agree. But the vote taken at the meeting of Jan. 12, 1887, was not to make a purchase if a satisfactory price could be agreed upon. It was plainly an exercise of the town's legal right to buy at a price to be subsequently fixed.
The article in the warrant under which the ballot was taken was carefully drawn in express reference to the provisions of the sec- tion which we have quoted. The committee appointed Jan. 25, 1887, was, in the language of the vote, " for the purpose of ascer- taining what price or compensation shall be paid by the town for the franchise, corporate property, and other rights and privileges of the Braintree Water Supply Company." The town's original action was correctly interpreted by the town itself when it voted at a subsequent meeting, " to rescind its vote passed Jan. 12, 1887, to purchase the franchise, corporate property, and all the rights and privileges of the Braintree Water Supply Company, according to the provisions of Section 10, Chap. 269, Stat. 1836." And this action gave the petitioner rights which the subsequent rescission of the vote could not take away. Nelson v. Milford, 7 Pick. 18; Woodbridge v. Cambridge, 114 Mass. 483; Hall v. Holden, 116 Mass. 172.
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It is argued that the petitioner entered into a contract with Wheeler & Parks, which prevented the vote from taking effect. but this argument is not well founded. The corporation might go on under its charter and make any proper contracts for the con- struction of its works and for conducting its business. No con- tract that it might make could deprive the town of the right to purchase its property and franchise under the statute, or prevent the appointment of commissioners to determine the price to be paid. Any contract in terms inconsistent with the exercise of that right would be contrary to the statute, and void as against the town. Any contract properly made in carrying on its business would be binding upon it. Section 9 of its charter authorized a mortgage of its franchise and property under certain limitations, but it does not appear that the mortgage named in the vote of September 15, 1886, and stipulated for in the contract of October 30, 1886, was ever made. The respondent contends that the corporation was never so organized as to be capable of selling its franchise or property, or of maintaining this petition. It must he remem- bered that this is a corporation created by a charter, and that neither payment for its capital stock, nor even subscription for all of it by individuals was a necessary preliminary to organization or to the transaction of business by it.
The provisions of Pub. Stat. Chap. 105, Sec. 9, in relation to or- ganization, are merely directory, and are intended to s cure to all members of a corporation their right to participate in its proceed- ings. If all the members consent to an organization which disre- gards the statute requirements as to notice, the organization is valid. Newcomb v. Reed, 12 Allen, 362 ; Walworth v. Brackett, 98 Mass. 98. The proof of the Act of Incorporation, of the action under it and of the dealings of the respondent with the peti- tioner, as such corporation, is presumptive evidence that the cor- poration was legally organized, and is sufficient for the mainten- ance of a petition in the corporate name. Bank v. Silk Co., 3 Metc. 282 ; Society v. Davis, Id. 133; Institution v. Harding, 11 Cush. 285 ; Insurance Co. v. Jesser, 5 Allen, 446 ; Toppings v. Bickford, 4 Allen, 120 ; Hawes v. Petroleum Co., 101 Mass. 385. The neglect of the town to act upon the report of its committee containing the offer of the petitioner shows that the
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parties were unable to agree upon the compensation to be paid. Indeed, bringing this petition without evidence of negotiation, or attempts to negotiate, would be enough to satisfy the requirements of the statute in regard to that. Burt v. Brigham, 117 Mass. 307 ; Aetna Mills v. Waltham, 126 Mass. 422.
Upon the facts agreed, we think the allegations of the petition are established, and that commissioners should be appointed to determine the compensation to be paid by the respondent for the franchise and property of the petitioner. Ordered accordingly.
The following were appointed as the Commissioners : Judge John Lowell, Darwin E. Ware, and Moses Williams.
At this point the work on the Great Pond system was discon- tinued. The suspension of operations led to a suit against the town by the contractors, Messrs. John Cavanagh & Son, a settlement of which was effected during the present year, as will be seen by report for 1891.
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